State v. Lindley
| Decision Date | 17 June 1986 |
| Docket Number | No. 8515SC1372,8515SC1372 |
| Citation | 344 S.E.2d 291,81 N.C.App. 490 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Linda Coble LINDLEY. |
Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Kathryn L. Jones, Raleigh, for the State.
R. Nelson Richardson, Graham, for defendant-appellant.
Defendant assigns error to the trial court's denial of two motions, (1) a motion to quash the indictment and (2) a motion made at the close of all the evidence to dismiss the charge of felonious breaking and entering. The issue dispositive of both of defendant's assignments of error is whether an unconsented to entry of premises, which is expressly prohibited by a marital separation agreement and the taking and carrying away of antique guns valued at over $4,500.00 is sufficient to indict for and submit charges to the jury of felonious breaking and entering and felonious larceny.
The thrust of defendant's argument is that since she was married to the occupier of the premises broken into and the owner of the antique guns carried away, the common law precludes prosecution of her despite the express withdrawal of consent to her entry of the subject premises as stated in the separation agreement. Our decision is rendered accordingly.
A bill of indictment may be quashed if no crime is charged. See generally, State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972). The true bill returned by the grand jury against defendant in the case sub judice, was in pertinent part as follows:
Date of Offense: Nov. 9, 1982 offense in violation of G.S. 14-54(a); 14-72(b)(2); 14-72(c)
I. The jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above the defendant named above unlawfully, wilfully and feloniously did break and enter a building occupied by William L. Lindley used as a dwelling located at Hwy. 62 S., Alamance, North Carolina with the intent to commit a felony therein: larceny.
II. And the jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully, and feloniously did steal, take and carry away assorted items listed on the attached Exhibit 1, which exhibit is incorporated in this Indictment by reference as if fully set forth on the face thereof.
The personal property of William L. Lindley having a value of $4551.00 dollars, pursuant to the commission of felonious breaking and entering described in Count I above.
Defendant, in her brief, cites various treatises and State v. Fulton, 149 N.C. 485, 63 S.E. 145 (1908), for the proposition "that the wife cannot be convicted for stealing her husband's goods, the reason being that husband and wife were considered but as one person in law." Fulton, supra, at 489, 63 S.E. at 146. Defendant argues extensively that it would undermine the unity of the family to abrograte the common law principle of Fulton, supra. Defendant, by her entry into the marital separation agreement, has made her case factually distinguishable from the common law principle stated in Fulton, supra, and through said agreement relinquished the following aspects of her marital status:
WHEREAS, unhappy differences have arisen between the parties which have caused them to separate from each other on the 5th day of March, 1982, and that such differences are now so pronounced and of such a nature that a reconciliation between the parties is impossible and they, after full deliberation, have deemed that they should separate from each other and continue to live separate and apart from each other for the remainder of their natural lives, that they should terminate the marital relationship, and that a continued and permanent separation each from the other is necessary for the health, happiness, and mental and physical well being of the parties hereto....
1. AGREEMENT TO LIVE SEPARATE AND APART. The HUSBAND and WIFE shall live separate and apart from each other in the same manner and to the same extent as though they had never been married to each other, and neither shall in any wise molest, disturb, or intrude without invitation upon the the presence of the other, each being free to reside at such place or places and to associate with such person or persons as he or she may desire, all free from any restraint or interference, direct or indirect, on the part of the other.
....
4. REAL PROPERTY. The...
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State v. Williams, COA12–1337.
...defendant was in Ms. Santos' home with or without her consent was a question for the jury to resolve. See State v. Lindley, 81 N.C.App. 490, 494, 344 S.E.2d 291, 294 (1986) (holding that whether defendant-victim's former spouse—had consent to enter victim's residence was question for jury w......
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State v. Allen
...case in North Carolina has held that this [precise] conduct constitutes felony breaking and entering," cf. State v. Lindley , 81 N.C. App. 490, 494, 344 S.E.2d 291, 293–94 (1986) (upholding conviction for felonious breaking and entering where the defendant entered the premises of his former......
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Shaw v. Jones, 8612SC136
... ... "Attorney's fees may be recovered as part of costs in state court proceedings instituted to enforce provisions of 42 U.S.C. [81 N.C.App. 489] § 1983." Lumber Co. v. Brooks, Comr. of Labor, 50 N.C.App. 294, ... ...
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State v. Mahaley, COA95-816
... ... Lindley, 81 N.C.App. 490, 494, 344 S.E.2d 291, 293 ... (1986)(acknowledging the larceny rule but finding "no family unity left to undermine" because parties had separated). However, at common law one could be found guilty of assault or other acts of "malicious outrage or dangerous violence" against a ... ...